PAUL SIMANGO

versus

MARTHA SIMANGO

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 19, 20 January 2009 and 20 May 2010

Family Law Court

Divorce Action

Mr. Guwuriro, for the plaintiff

Mr. H. Nkomo, for the defendant

MUSAKWA J: The plaintiff issued summons claiming a decree of divorce, rights of access to the minor child, a division of matrimonial assets and costs of suit. the defendant also filed a counter- claim seeking similar relief.

The parties agreed that the marriage had irretrievably broken down. They had also settled on custody of the minor children as well as division of most of the movable assets. The only outstanding issues are the distribution of two refrigerators, two motor vehicles and two immovable properties.

The plaintiff testified to the effect that he married the defendant under customary law in 1990. The marriage was later solemnized in 1992.

The plaintiff confirmed that flat number 3 Selmont Gardens, Belvedere was purchased by the defendant through a loan facility granted by her employer. They agreed that the mortgage would be serviced through the defendant’s salary whilst the plaintiff’s income would be used to maintain the family. The flat was registered in the defendant’s name. The parties resided in the flat for about three years. The plaintiff contributed towards maintenance of the property, levies and rates. He put his indirect contribution at fifty percent.

The plaintiff told the court that he applied for stand number 17170 Borrowdale. They moved in prior to its completion in 1995. Around that time he had secured a loan from the Reserve Bank of Zimbabwe financed trough the Credit Guarantee Company. He purchased a bus from whose proceeds he constructed the house. He engaged a contractor. The mortgage on the flat was still being serviced by the defendant. According to the plaintiff, the defendant’s contribution towards the construction of the house equates to thirty percent.

According to the plaintiff ninety percent of the house’s construction was done on a cash basis as he had disposable income and was operating a transport business. He later secured a mortgage to complete the house. By then he was an assistant manager with T.A. Motors.

The main house was completed in 2000. In 2005 they made extensions comprising lockable garages, second lounge and balcony. By the time he left the matrimonial home the extensions had reached roof level. The plaintiff had no idea when the mortgage on the flat was repaid in 2003 as he had been transferred to Marondera.

On vehicles the plaintiff stated that he preferred the Daihatsu Move. If the vehicles cannot be shared then they should be sold with the proceeds being shared equally. Between 2005 and 2006 he purchased foreign currency amounting to US$7 000 from the bank. The family then went to South Africa where they purchased the Daihatsu and a Toyota Corolla. At the border the plaintiff caused the Daihatsu to be registered in the defendant’s name whilst the Toyota Corolla was registered in his name. Within a month he sold the Toyota Corolla and invested the proceeds in Unit Trusts. The income thus earned was used to develop the Borrowdale house.

Later the defendant was offered to purchase a Nissan Ex Saloon by her employer, Agribank. The deposit of ten percent that was required was paid from the Unit Trust account.

In respect of household goods the plaintiff testified that he only claimed a stove and a refrigerator. The four plate stove was non-functional. Since there are two stoves and two refrigerators, he was only claiming one of each. Since the refrigerators are an upright one and a freezer, the defendant could choose what she preferred. The items were acquired by the defendant as family property after the parties had consulted each other.

On maintenance the plaintiff agreed that he would meet all the child’s needs. It may be noted that the elder child is now a major.

It was put to the plaintiff that the deposit for the Borrowdale property was provided by the Reserve Bank and he stated that he would need to verify that. He also stated that he overlooked to disclose during his evidence in-chief that the extensions to the house were funded from money he served when he was seconded to Toyota South Africa. Regarding duty for the imported vehicles, it was put to him that the money had been provided by the defendant and the plaintiff replied that he had reservations.

The plaintiff also indicated that he was residing in a house provided by his employer for which he paid some rent. He also insisted that he was in a stronger financial position than the defendant as he now held the post of divisional director whereas the defendant had remained a personal assistant. On maintenance for the minor Denis he agreed to pay for his school fees and to meet other needs.

The defendant testified that between 1988 and 2004 she worked for The Reserve Bank. Apart from basic salary she was entitled to vehicle loans, personal loans and housing loans. In 1990 she purchased the flat through a mortgage bond financed by the Reserve Bank. She was then still single. She resided in the flat until 1991.

She subsequently sold the flat and surrendered the proceeds to the Reserve Bank. In 1995, following cancellation of the bond she acquired number 3 Selmont Gardens. The purchase price came from the proceeds of the disposal of the flat. The plaintiff did not make any direct contributions.

Part of the funds for development of the Borrowdale property came from the rentals received for the flat. The rentals from the flat used to be deposited into the plaintiff’s account but he sometimes squandered it. She then caused the rentals to be deposited into her account with Standard Chartered Bank. She uses the rentals to pay school fees for the child who is at Heritage School.

She further stated that she purchased the stand for the Borrowdale house after securing a loan from The Reserve Bank. She was adamant that the plaintiff made no contribution. She also stated that she used to earn more than the plaintiff as they used to receive frequent salary increments at the central bank. She was able to tell the court details about who drew the plan, where building materials were sourced.

The bus that was purchased by the plaintiff was a twenty-five seater. The income derived from it was negligible as most of the money went for loan repayment, wages and running costs. At some stage loan repayment were in arrears and the defendant had to chip in. The bus was later disposed of.

Extensions to the house were the plaintiff’s idea although he contributed nothing. Most resources came from the defendant’s retrenchment package whose proceeds had been deposited into the Standard Chartered account. She then deposited part of the money with Highveld Financial Services.

Extensions to the house comprised a guest bed room with en suite, guest toilet, passage, double lock-up garage, balcony and a second lounge. She also used proceeds from the retrenchment to purchase a 29 inch colour television set, a television stand, 12 cubic feet single door refrigerator, microwave oven and a four plate stove. Part of the funds was used to purchase a Toyota Corolla motor vehicle which was subsequently sold to a Mr. Khan. The money received from Mr. Khan was initially deposited into the plaintiff’s account and he later transferred it into the Highveld account.

Regarding the importation of vehicles from South Africa, it was the defendant’s evidence that she transferred money into the plaintiff’s account for the purchase of traveler’s cheques. She also obtained R2 500 from Agribank for their subsistence and accommodation. Money for duty in respect of the Daihatsu was withdrawn from the plaintiff’s Agribank account. The defendant then used her visa card to clear the Toyota Corolla.

The defendant indicated that she wants to retain the matrimonial home for the sake of the children. She expressed her willingness to buy out the plaintiff’s share.

In his submissions Mr. Guwuriro cited s 7 of the Matrimonial Causes Act [Chapter 5:13] as the provision that guides a court in apportioning matrimonial assets. He further submitted that the provision is not specific on what constitutes matrimonial property. He also cited the case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC) as authority on how a court should divided matrimonial assets.

In respect of the movables Mr. Guwuriro submitted that the established evidence was that the refrigerators were purchased from proceeds of investments with Highveld Investment Services. Therefore, the plaintiff should be awarded one of the refrigerators.

Mr. Guwuriro further submitted that there was evidence to show that the plaintiff contributed towards maintenance of the Belvedere property. He also submitted that the evidence shows that the plaintiff is the one who acquired the Borrowdale stand and that both parties contributed towards its development. Overall, he submitted that the plaintiff should be awarded fifty percent of the Belvedere flat and seventy percent of the Borrowdale house. It was also submitted that the plaintiff will be able to buy out the defendant’s share within thirty days. 

On the other hand Mr. Nkomo submitted that the dispute between the parties centres on the children whose custody was awarded to the defendant. In making an award, he submitted that the court should take into account the interests of the children who regard the Borrowdale house as home. In this respect he cited s 7 (4) of the matrimonial Causes Act.

MrNkomo correctly submitted that since the Borrowdale property is jointly owned by the parties, the starting point is that the parties own equal shares. The next stage, according to Takafuma’s (supra) case is to take away from one party and awarding to the other according to their respective contributions. In this respect, Mr. Nkomo submitted that the plaintiff’s evidence on the nature of his contribution is unreliable as he did not provide any documentary proof. He further attacked the plaintiff for not disclosing the sources of his income during his evidence in-chief. In short, he submitted that the plaintiff generalized his contributions in respect of the Borrowdale property. In essence, he contended that the evidence speaks for itself that the defendant made more contributions than the plaintiff. Although the evidence in respect of the flat shows that it was acquired solely from the defendant’s resources, Mr. Nkomo did point out that the defendant conceded that the plaintiff contributed towards its maintenance.

In accordance with the case of Takafuma v Takafuma(supra), the starting point is that the Borrowdale property is jointly owned by the parties. Although the plaintiff claimed a greater share on account a greater contribution, he did not proffer evidence to prove that. Each party testified on the nature of contributions they made in respect of the development of the stand without tendering actual receipts on the payments made. The court’s overall assessment is that none of the parties is entitled to a greater share than the other. Therefore this property will be apportioned equally to both parties, with the defendant being given the right to remain in occupation until the younger child attains majority status. Thereafter the defendant shall buy out the plaintiff’s share failing which that option will be given to the plaintiff.

As regards number 3 Selmont Gargens, the starting point to note is that it was acquired during the subsistence of the marriage and therefore constitutes matrimonial property. However, it was acquisition was solely financed by the defendant albeit from the proceeds of an earlier property. It is in fact registered in the defendant’s name and would fall in the category of “hers”. The plaintiff claims a share of the property on the basis of his contribution towards its maintenance. This was basically in the form of rates, levies and telephone bills. The amount involved was not stated. The parties only stayed in the property for about three years. I would hold that the plaintiff is entitled to a share albeit it would be very negligible on account of his small indirect contribution. This is in accordance with s 7 (1) (a) of the Matrimonial Causes Act which provides that-

“ (1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at anytime thereafter, an appropriate court may make an order with regard to—

(a) the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

(b) …………………….

Therefore, although the flat belongs to the defendant it can be subject to division by virtue of the above provision. However, in making such a decision the court must take into account the provisions of s 7 (4) which provide that-

“ In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances

of the case, including the following—

(a) the income-earning capacity, assets and other financial resources which each spouse and child has or is

likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in

the foreseeable future;

(c) the standard of living of the family, including the manner in which any child was being educated or trained

or expected to be educated or trained;

(d) the age and physical and mental condition of each spouse and child;

(e) the direct or indirect contribution made by each spouse to the family, including contributions made by

looking after the home and caring for the family and any other domestic duties;

(f) the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such

spouse or child will lose as a result of the dissolution of the marriage;

(g) the duration of the marriage;

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct,

is just to do so, to place the spouses and children in the position they would have been in had a normal marriage

relationship continued between the spouses.”

In the court’s discretion, the plaintiff will be awarded a five percent share in the flat.

As regards the movables, the documentary evidence before the court shows that the Nissan Sunny vehicle was acquired by the defendant through a loan from her employer. It would not constitute her property until the loan was discharged. It is therefore not subject to distribution. As for the Daihatsu move, the documentary evidence shows that the defendant received a substantial retrenchment package from the Reserve Bank in 2004. She invested the money with Highveld Financial Services. She subsequently applied for holiday travel allowance. When the vehicle was imported, she paid for the duty from funds from her Agribank account and in this case she accessed the account through the Agribank branch at Beitbridge. Taking into account that the defendant played a more significant role in the vehicle’s acquisition and the fact that she is going to be awarded custody of the minor child, it is only fair that the Daihatsu Move be awarded to her

In respect of household goods the only contested items are the two refrigerators. Although the defendant claimed that she is the one who purchased the two refrigerators it is not in dispute that they were acquired during the course of the marriage. Had the marriage subsisted both parties would have continued to enjoy the use of the refrigerators jointly. To award both of them to the defendant would result in an unequal division taking into account the purpose of the act. Therefore the defendant will be given the option to choose one of them and hand over the other to the plaintiff. In reaching this decision I have taken into account that the defendant is being awarded the bulk of the movables.

Accordingly, it is ordered that-

1. A decree of divorce be and is hereby granted.
2. Custody of the minor child Dennis Tawanda Simango is granted to the defendant with the plaintiff exercising access during alternative weekends and half of each school holiday.
3. The plaintiff shall pay school fees for Anna Sibahle Simango based on the Monte Casino Girls High School scale.
4. The plaintiff shall be responsible for the payment of Dennis Tawanda Simango’s school fees including all other school requirements.
5. In respect of flat number 3 Selmont Gardens, the plaintiff is warded a five percent share whilst the defendant is awarded a share of ninety five percent.
6. Both parties are awarded equal shares in stand number 17 170 Sable Street, Borrowdale.
7. The defendant is given the right to remain in occupation of stand number 17 170 Sable Street, Borrowdale until Dennis Tawanda Simango attains the age of eighteen years. Upon Dennis Tawanda Simango attaining the age of eighteen years the defendant shall buy out the plaintiff’s share failing which the plaintiff is given that option.
8. All the movable assets including the Daihatsu Move vehicle are awarded to the defendant save that the defendant shall choose one of the functional refrigerators and hand over the other to the plaintiff.
9. Each party shall bear their own costs.

T. K. Hove and Partners, the plaintiff’s legal practitioners

Mtetwa and Nyambirai, the defendant’s legal practitioners.